BEFORE THE DEPARTMENT OF COMMERCE

                           National Telecommunications and Information Administration

                                                      WASHINGTON, D.C. 20230

 

 

Docket No. 010222048-1048-01                   )

Comment on Section 105(a) of the                )

Electronic Signatures in Global and  )

National Commerce Act                                )

____________________________________________________________________________

 

                                 COMMENTS OF THE NATIONAL ASSOCIATION

                                    OF CONSUMER AGENCY ADMINISTRATORS

 

The National Association of Consumer Agency Administrators (“NACAA”) seeks to support public agencies responsible for ensuring a fair and informed marketplace.  NACAA represents over 165 consumer agencies at all levels of government in both the United States and a number of other countries, providing direct constituent services for the resolution of consumer complaints, conducting consumer education, and otherwise advocating for the interests of consumers.

Consistent with these goals, NACAA submits the following comments in response to the request of the Department of Commerce and National Telecommunications and Information Administration (“the Department”) for comments on Section 105(a) of the Electronic Signatures in Global and National Commerce Act (“ESIGN”), on the effectiveness of delivery of electronic records to consumers using electronic mail as compared with the delivery of written records via the United States Postal Service and private express mail services.


As NACAA is commenting neither as a business, nor directly as a consumer, the format of these responses will, where possible, follow the construct of the “consumer issues” segment of the Department’s outline of specific questions, but, where necessary, may deviate somewhat from that format.

Consumer Issues

It is axiomatic that electronic communication is not universally available or financially achievable for all consumers in the United States.  In the small business sphere, NACAA itself can point to the non-universality of electronic message and document delivery.  While many NACAA members have access to the tools necessary to enable them to receive documents electronically, not all do.  NACAA members range from small, local consumer mediation offices to large county, state, federal and international agencies.  Even in this business atmosphere, there remain small programs that cannot afford to expend monies on the items necessary for delivery and receipt of electronic communications. 

The requirements include a computer, a telephone wire or cable access connection, and an Internet Service Provider, or ISP.   There is a fairly substantial capital outlay to acquire a computer, and, if one wishes to keep a physical copy of a communication, a printer, and a monthly service fee for an ISP.  At the current time, these fees generally range from $20 to $40 a month.  No such outlays are necessary for a consumer or NACAA member to receive information via United States mail or independent delivery service.  NACAA therefore believes that since the economic underpinnings of electronic communication are such that not all consumers have access to the means of electronic communications at the present time, the Department should be extremely cautious in its assessment of the comparative simplicity and value of traditional and electronic methods of communication.


NACAA believes that consumers, many of whom are only just now adjusting to the use of electronic media for business transactions, need to be comfortable with the receipt of electronic records.  For that reason, their consent to receipt of records should appropriately be sought, and there should be a clear way to identify whether a consumer has, in fact, received an electronic record.  ISPs often face problems with transmission and receipt of records, networked and individual computers crash, and data is lost, with no knowledge by the sender or the intended recipient that the information was received or sent. 

While electronic communication is often faster and cheaper than conventional forms of delivery, it is often less certain that electronic records, unlike their paper counterparts, can be recovered in the future.  System failures can damage or destroy electronic records, and unless appropriate safeguards are in place, may also be modified without the knowledge of the person in whose files the records exist, or to whom they are sent.  Paper documents are less easily manipulated.  NACAA believes that it is extremely important that tamper-resistance be built into any electronic records intended to be kept, in order to maintain consumer trust in the system.


NACAA receives many complaints each year from consumers concerning the theft or misapplication of their personal information.  While one person may steal the paper mail from a consumer’s mailbox, the number of persons who can access an individual’s personal information on line can be virtually limitless, dependent only on their ability to get past electronic fire walls.  NACAA therefore believes that guaranteeing the security of electronic information is of great importance in evaluating the effectiveness of electronic communication against that of physical, real world, paper communication delivered by the United States Postal Service.  NACAA suggests that most consumers believe very strongly in the integrity of the postal service and its professional staff, and that this contributes to the level of comfort they feel in conventional paper communications.

Finally, as NACAA noted in its earlier comments on ESIGN (study on consumer consent to electronic communication and document receipt), the fact that technology has changed very rapidly in the area of electronic communication means that the onus to keep up has consistently been placed, unfairly, in NACAA’s opinion, on the consumer.  While the cost of sending paper letters goes up on occasion, the cost to receive such communications does not vary--it is always free.  Such cannot be said for either sending or receiving electronic communications, and this cost factor, too, should be weighed in evaluating the differences between the two methods of communication.

                          Conclusion

NACAA appreciates the opportunity to provide these comments to the Department of Commerce and National Telecommunications and Information Administration for its study of ESIGN.  NACAA invites the Department or NTIA to contact our association for further clarification of our position or to request that NACAA respond to any questions that either the Department or NTIA may have regarding these comments.

Respectfully submitted,

 

Sheryl Goodman-Lord, President

NATIONAL ASSOCIATION OF CONSUMER

AGENCY ADMINISTRATORS

1010 Vermont Avenue, N.W.

Suite 514

Washington, D.C. 20005

(202) 347-7395

 

May  2, 2001